402 International CALIBER-2008

Copyright Fails in Libraries in Digital Era

Mohammad Haroon Khan Gayas Makhdumi
Abstract

The article addresses activities that involve some of the exclusive rights of copyright holders; the
right to make copies, to display or perform copyright works, and in some cases to distribute works;
and the copyright law’s exemptions from liability for fair use and for certain library copying. Copyright
is legally complicated, controversial, subject to a number of misunderstandings and generally not
fully understood even by the librarians whose daily tasks include administering it. To better understand
the current status of copyright and its impact on libraries the notion of copyright is briefly outlines,
along with what exactly copyright is. Libraries and academic institutions can also influence publishers
to adjust their present copyright policies with regard to the reuse of published articles. The expectation
is that there will be many digital libraries, most of which will have specialized collections and will be
internet worked together in a way loosely resembling today’s Internet. Most digital library project
planners are aware there are intellectual property issues that must be resolved in order to successfully
deploy their libraries. Some proposals for digital library projects express intent to resolve intellectual
property issues as part of the overall plan for the library.

Keywords : Copyright, Digital Rights Management

1. Copyright Basics

Copyright arose from the idea that anything we create should be protected from use by someone
else, reflecting the fact that the creator has exclusive rights over the thing created. Copyright law
protects these rights, including the copying or lending of material and ensures that some access to
copyright work is allowed. Copyright is a right given by the law to creators of literary, dramatic,
musical and artistic works and producers of cinematograph films and sound recordings. In fact, it is
a bundle of the rights including, inter alia rights of reproduction, communication to the public,
adaptation and translation of the work.

Copyright law provides protection for the following classes of works:

♦ Literary Work refers to written or printed matter (song, lyrics, manuscripts, computer
programs, web page, articles, etc.).
♦ Dramatic Work includes any piece of recitation, choreographic work or entertainment in dumb.
♦ Artistic Work means a painting, a sculpture, a drawing (including a diagram, map, chart,or
plan).
♦ Cinematograph Film means any work of visual recording on any medium produced through a
process from which a moving image may be produced by any means.

6th International CALIBER -2008, University of Allahabad, Allahabad, February 28-29 & March 1, 2008 © INFLIBNET Centre, Ahmedabad
 403

♦ Sound recordings means a recording of sound from which such sounds may be produced
regardless of the medium on which such recording is made.
Copyright is a part of a wider group of rights known as intellectual property, which also includes
designs, trademarks and patents. Its definition as a property right is significant source of information?
Because, as with other property, copyright can be bought, sold or transferred to another.

Copyright is thus the legal protection extended to the owner of the rights in an original. It comprises
two main sets of rights: The Economic rights and the moral rights.

The Economic right issues involve the Economic rights of creator. These rights are the rights of re-
production, broadcasting, public recitation, public display, distribution and so on of the creator’s
original work. Whereas Moral rights includes the Authors right to object to any distortion, mutilation
or other modifications of his work that might be prejudicial to his honor or reputation.

2. Copyright Issues in Libraries

In libraries some of the operations where Copyright issues get involved are:

♦ Print Copies: Often Libraries have to make their own copies of the documents for their wider
use, when their reprints are not available. The permission of authors desired.

♦ Electronic Copies: In the present era of electronic publishing and on-line delivery of Information,
users are requesting Electronic copies. Here, also, there is chance of infringement.

♦ Audio, Image and Audio-Visual Copies: Most of the images and Audio-Visual works, when
reproduced, and then the perpetrator could be accused of infringing the authors’ moral rights.

♦ Electro Copying, Electronic Copyrights and Networking: Electro copying involves the
conservation of printed material into Machine Readable Form using documents images
processing and Optical Character Recognition (OCR) Technology.

♦ Multimedia Products: Earlier copyright law has been split between different media like law
for written text, law for still images, for sound recording, for Musical works etc. But in Multimedia,
all of these have been bundle together to a single product, so, there are some provisions for
protecting the rights of Multimedia products but no clear-cut policy had been designed yet.

♦ Archiving: It includes archiving both published and unpublished material. Archiving right is
designed to allow Libraries to make copies of printed books and of out of print books, manuscripts
and periodicals.

♦ Digital Libraries: Present Copyright laws inhibit the complete realization of the idea of digital
libraries.
404

3. Digital Rights Management and Copyright Laws

Digital Rights Management (DRM) denotes technologies that control digital content. While copyright
holders have exclusive rights of copyright such as the right to make a copy or the right to distribute
work to the public, they do not have the rights to control how the works are used.

Content owners are looking to DRM technologies as a means to control the use of their content.
Many public interest organizations however fear that DRM technologies will be used by copyright
owners to erode capabilities that had previously been permitted to the public by copyright law under
the “Fair Use” doctrine.1 Source in the support of the statement? For Libraries, DRM technologies
can additionally impact first-sale preservation activities, and institute pay-per-use pricing.

♦ The unimpeded flow of information is fundamental to the mission and activities of both higher
education and libraries, making Digital Rights Management a complex and challenging activity
in these domains. In the higher education and library areas, DRM is interpreted broadly as
encompassing more than restricting access to content. It is recognized that a varieties of DRM
solutions are needed. These solutions need to be implemented in more comprehensive and
sophisticated ways for intellectual property management. Following points also need to be
implemented: Supporting libraries not just as users but also as creators and owners of copyright-
protected content

♦ Supporting “fair use”, while expecting library and education especially not applying ex ante
enforcements that disables the use of the content;

♦ Supporting rights and permissions throughout the life cycle of a resource;

♦ Supporting the heterogeneous applications and users of the digital content in higher education:
e-learning, digital libraries, online collaboration, and institutional repositories, for example;

♦ Supporting the preservation and archival roles of libraries; and

♦ Accommodating the interactive and dynamic nature of e-learning and digital content.
4. Library Reproduction Rights

Section 108(c): permits reproductions of published works for replacing a damaged, deteriorated,
lost, or stolen copy, but only if “an unused replacement cannot be obtained at a fair price.”

Section 108(d): permits reproductions of articles, A second source of user rights of particular
significance to libraries is “Section 108” of the 1976 Act, which permits copying of materials by
libraries pursuant to relatively specific standards. Unlike the fair use statute, Section 108 does not
inherently depend on analysis and interpretation for every application. Much of the language of
Section 108 can instead have practical meaning for many libraries without resorting to substantial
 405

external guidance or elaborate interpretations. Some of the principal activities allowed under Section
108 include the following:

Section 108(b): permits reproductions of unpublished works for preservation or security or for
deposit at another library.

or contributions to collections or small parts of larger work for a patron’s private study, scholarship,
or research.

Section 108(e): permits reproductions of entire works for a patron’s private study, scholarship, or
research, if “a copy cannot be obtained at a fair price.”

Section 108(f) (1): exempts libraries and their employees from liability for copying made by patrons
on unsupervised machines where appropriate notices are posted.
♦ Section 108 does not apply to every activity in every library. Its provisions apply only to libraries
that are open to the public, or at least open to researchers not affiliated with the institution.
Most university libraries probably meet that standard. The rights of Section 108 also apply only
if “the reproduction or distribution is made without any purpose of direct or indirect commercial
advantage. . . .” The legislative history to the 1976 Act, however, indicates that Section 108 can
have some application even in libraries operated by for-profit institutions.2 The rights of
reproduction also do not extend to all types of copyrighted works. Many of the rights do not
apply to “a musical work, a pictorial, graphic or sculptural work, or a motion picture or other
audiovisual work other than an audiovisual work dealing with news. . . .” (See Section 108(h)).

♦ Section 108 is generally not regarded as the source of rights for reserve operations. Reserve
room copies are made pursuant to fair use law; reserve rooms may be located in libraries, but
they function as an extension of classroom teaching. The distinction between Section 108 and
107 for reserve rooms is important. Section 108 provides only for single copies of items, while
the fair use statute specifically permits some multiple copies for classroom use, although
subject to the four factors of fair use. Multiple copies are often essential for effective reserves.
♦ Librarians are no doubt familiar with the “Five-Year Reports” that Section 108 originally required.
The U.S. Copyright Office sponsored the studies in order to report every five years to Congress
on the effects of Section 108. Congress received reports in 1983 and 1988, and in 1992 it
repealed the requirement of further studies.3

5. Copyright Fails in the Digital Era

The digital era in which libraries operate has radically altered the word copyright. Essentially, copyright
material has become much more vulnerable to unauthorised copying and new technologies have
overcome the restrictions upon the dissemination of material that existed in the copyright era. This
has resulted in copyright fails in the digital era because:
406

♦ The notion that copyright provides a guaranteed income for the creator of a work has been
shown in at least on experiment to be false. Making a work free and copyright free and posting
on a website generated more print sales than had the work solely been available in a print,
copyright version.

♦ Copying something digital is almost without cost. Although there are associated costs such as
having a PC; access to the web; purchasing CD or DVD, there are not viewed by consumers in
the same way as purchasing a pre-recorded CD.

♦ Copyright fails because of distributed ownership and rights. The position is often too complicated
to fathom out when determining copyright status especially in relation to music where there
may be lyrics, music, creator, performer, recorder etc.
♦ Access to an almost unlimited amount of information in much easier than if the information
were in print format, thus the temptation to make unauthorised use of it is much greater.
♦ The technology that allows digital data to be transmitted is the same technology that is used to
control access to information such as articles in database.
The other issues confronted in the libraries with regard to the failure of copyright are:
♦ The notion of “fair use” allows copying, yet the general public does not understand the distinction
between “infringement” and “fair use”.
♦ The argument that the copyright broadens access but more a work is copied, the more it is
seen.
♦ Once the term of copyright has expired, a work falls into the public domain. The public will
have free access eventually, so why create such a fuss when it is only a matter of time before
access and use is uninhibited.

6. Copyright Fails in the Libraries

The other challenges contributing to the failure of copyright in libraries are 4:

♦ With so much information no longer held in the library building, but being accessed remotely,
it is impossible to monitor or control from a copyright perspective. A consequence of this is that
the law is practically unenforceable.

♦ Many users with some understanding of copyright laws regard is as being overly protective of
publishers or business and choose to ignore it as a form of conscious or unconscious protest.

♦ As more and more users ignore copyright, libraries put greater effort into upholding it, as if
they had something to gain from it. Libraries have no direct gain and are simply pandering to
the monopolistic practices of data owners.
 407

♦ Library’s work is to provide huge aggregate of information in the form of databases. These
databases present information in a manner that appears to obviate the need for and existence
of copyright protection.

♦ Some Libraries will and do circumvent the legislation. For example, the extreme high cost of
the some DVDs purchased for educational establishments is due to a license fee as a result of
copyright. Libraries may circumvent this by purchasing from Amazon, or purchasing by faculty
who then lend the item to the Library. It is rather hypocritical for a library to be acting as
upholder of copyright.

♦ There is widespread practice to make back-up of expensive videos or DVDs without permission,
so that if the original becomes damaged or worm out; the copy can be placed for use in the
stack.

7. Copyright- Indian Scenario

In India, the development of copyright law was closely aligned to the British Copyright law in 1911.
India passed the first copyright act in 1914. A number of amendments to this act were affected in
1983 to avail benefits arising from the revision of Berne Convention and Universal Copyright Convention
to which India is an adherent. Recent amendments of 1992 extended the term of copyright protection
from the lifetime of the authorship plus 50 years to the lifetime of the authorship plus 60 years. The
Copyright act of 1957 was passed by both the Houses of Parliament and the last amendment was on
13th May, 1994. The result was the enactment of Indian Copyright Act of 1957 replaced the act 1914.
Act 1957 came into force on 21st January 1958 5.

In 2006, Copyright office in India posted proposals to amend the Copyright Act, 1957 on its website.
One of the proposed amendments seeks to introduce the Digital Rights Management (DRM) in the
Indian copyright law 6. The purpose for such introduction in the Indian copyright laws has been to
“keep pace with national and international developments and advance in technologies,” a purpose
which is over simplified and undermines the complex debate which surrounds the introduction of
these measures in the most developed countries. A technological measure which is not only still in
the evolutionary stages but the policy itself is being reviewed by various countries, particularly USA,
which spearheaded the introduction of such rights in the realm of international law. The proposed
introduction of such provisions in the Indian copyright in spite of the fact that India not being a
signatory to the World Copyright treaties, is not under any obligation to introduce such changes,
particularly, at this stage of Indian socio-economic development when digital technology can play a
vital role in the developmental process. The rationale behind the introduction of these provisions in
Indian law is rather obscure but if it intends to tackle the escalating problem of piracy then such
introduction requires a better analysis in the light of the manner in which these provisions came into
existence in the realm of international as well as other national legislations and what has been the
408

consequent development following adoption of such provisions7.

8. Copyright – Other Countries Scenario

In the meantime, the issue of “Choice of court” terms in license agreements was the subject of
intense negotiations on the international scene. The Hague Convention on Choice of court agreements
is a multilateral agreement that creates rules for determining jurisdiction in international lawsuits.

A U.S. Library agrees to non-negotiated contract that requires that any litigation about the contract/
license must be brought in or defended in a court halfway around the world.

The CLA is the UK’s reprographic rights agency, representing a large number of UK publishers and
other right holders. Librarians are often familiar with this organization because it issues paper-to
paper licenses that if purchased by an organization permit multiple copying to be undertaken beyond
the scope of fair dealing. Currently the CLA is reviewing the Higher Education Digitization License in
particular the transactional nature of this license.

The Berne Copyright Convention was established in 1986 and has been revised a few times: Berlin
in 1908, Rome in 1928, Brussels in 1948, Stockholm in 1967 and Paris in 1971.

Australia also provides a useful example of where a blanket license approach to digitization is
working. In 2001, following an amendment to the copyright law, core readings could be scanned for
educational use. http://copyright.gov.in/logan

References

1. Anil Kumar, Nisitha and Surati, Dakshaben. Copyright law in developed countries: an overview.
IASLIC Bulletin, 50(4). 2005, pp.249-253.

2. Bhatt, R. K. Copyright law and libraries: current scenario. Journal of Library and Information
Science, 31(2), 2006. pp. 145-150.

3. Singh, J. N. Copyright issues in digital era. Library Herald, 44(2), 2006. pp. 141-145.

4. Bruwelheid, Janis. The Copyright Primer for Librarians and Educators. American Library
Association, 1995.

5. Ramana, P. Venkata. Copyright in the Digital Environment. Organization, Processing and Use
of Information in the Digital Era: Prof M. Parameswaran Festschrift. New Delhi: Ess Ess
Publications, 2004, pp.113-123.

6. Hoon, Esther. Copyright Issues in Open Access Research Journals. D-Lib. Magazine. 12(2),
2006.

7. Pedley, Paul. Copyright for Library Information Service Professionals. London: Aslib, 2000.
 409

8. Gayer, Amit and Shy, Oz. Copyright Enforcement in the Digital Era. CESifo Economic Studies.
51(2-3), 2005, pp.477-489.

9. Shade, Leslie Regan. Copyright in the Digital Networked Environment. Graduate Program in
Communications, McGill University, 1995.

10. Strong, William S. Copyright in the New World of Electronic Publishing. Electronic Publishing
Issues II, 1994.

11. Chowdhury, Ayan Roy. The Future of Copyright in India. BILETA (British & Irish Education and
Technology Associations) Annual Conference, 2007.

12. Crews, K. Copyright law for librarian and educators. ALA Editions, Chicago, 2006.

13. Henderson, Carol C. Libraries as Creatures of Copyright: Why Librarians Care about Intellectual
Property Law and Policy. Committee for Project: “Intellectual Property Rights & the Emerging
Information Infrastructure”, Computer Science & Telecommunications Board, National Research
Council, ALA, November 1998.

14. Texas State Library & Archives Commission Website: www.tsl.state.tx.us/ld/tutorials/copyrights

15. Lyman, Peter. Copyright and Fair Use in the Digital Age. Educom Review. 30(1), 1995.

16. Dreier, Thomas. Copyright Issues in a Digital Publishing World. Joint ICSU Press/ UNESCO
Expert Conference on Electronic Publishing in Science, UNESCO, 1996.

17. Kenneth D. Crews, J.D. Issues Copyright Law, Libraries, and Universities: overview, Recent
Development, and future. Association of Research Libraries, October 1992.

About Authors
Mr. Mohammad Haroon Khan, Library Incharge, AGM School Library, Jamia Millia Islamia, New
Delhi- 110025

Dr. Gayas Makhdumi, University Librarian & Head, DLIS, Jamiz Millia Islamia, New Delhi-110025